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Som Krishan Vs. Paras Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 60 of 1958
Judge
ActsTerritorial Councils Act, 1956 - Sections 16 and 20; ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rules 15, 17, 70, 71, 72, 75 and 79; ;Representation of the People Act, 1951 - Section 90(1); ;Constitution of India - Article 227
AppellantSom Krishan
RespondentParas Ram and ors.
Appellant Advocate K.C. Pandit, Adv.
Respondent Advocate Ramji Dass, Adv. for Respondent No. 1
DispositionPetition allowed
Cases ReferredHari Vishnu Kamath v. Ahmad Ishaq
Excerpt:
arbitration - amendment - order 6 rule 17 of code of civil procedure, 1908 - whether district judge has jurisdiction to allow amendment of election petition under provisions of order 6 rule 17 - district judge is not debarred from permitting alteration or amendment of petition under order 6 rule 17. - .....6, rule 17. the answer to this question would depend upon, whether rule 69 of the territorial councils rules 1957 is derogatory or supplementary to section 16 of the territorial councils act. learned counsel for the petitioner, vehemently, argued, that a rule could never supersede any provision of the act, under which it has been framed. he cited the following authorities radha krishan v. compensation officer, meja, allahabad, air 1954 all 202 (a). there a division bench of that high court had occasion to indicate that :'rules mad(c) under the rule making provision of an act cannot take away what is given by the act. rules are for the purpose of carrying out the provisions of the act. hence, the contention that the state government can make a rule, namely rule 84, taking away the.....
Judgment:
ORDER

T. Ramabhadran, J.C.

(1) In this petition, under Article 227, of the Constitution, the only point, for determination is, whether the learned District Judge of Mandi has erred, in holding, that he had no jurisdiction to allow amendment of the Election Petition, under the provisions of Order 6, Rule 17, C. P. Code.

(2) That Judge was of the opinion, that although, Section 16 of the Territorial Councils Act (Act No. 103 of 1956) lays down, that the procedure set forth in the C. P. Code, in regard to suits, shall be followed in the Court of the District Judge, as far as, it can be made applicable, in the trial and disposal of an election petition, under this Act, nevertheless, that procedure could be followed only with respect to those matters, which had been specified in that Act, or in Rules 70, 71, 72, 75 and 79 of the Rules framed under Section 20 of the Act.

(3) Having come so far, the learned District Judge goes on to observe as follows :

'The provisions of the C. P. C. relating to other matters are not applicable to election petitions. Had the intention been to apply all the provisions of the C. P. C., to election petitions, it would have been superfluous and rfedundant to frame Rules 70, 71, 72, 75 and 79, because provisions with respect to these matters already exist in the C. P. C. The intention appears to be that only those provisions of the C. P. C., will apply to an election petition which relates to matters coveted by the aforesaid Rules. The other provisions, including those conferring powers on the court to allow amendments will not apply. In my opinion this court is not empowered to call for further and better particulars from the petitioner.

(4) On 22-5-58, I admitted this petition, as one under Article 227 of the Constitution, since, I was of the opinion, that the above view of the District Judge was open to doubt. Arguments of the learned Counsel for the parties were heard, at considerable length, on the 15th and 22nd instant. For reasons to be stated shortly, I have come to the conclusion, that the decision of the District Judge, on this point, cannot be maintained.

(5) Mr. K. C. Pandit, for the petitioner, invited my attention to some of the provisions of the Territorial Councils Act, 1956, and of the Representation of the People Act, 1951, and the Rules made thereunder. He pointed out that although some of the provisions are similar, nevertheless, there are marked variations between the two sets of provisions. For instance, while Section 90 (3) of the Representation of the People Act, provides for the dismissal of an election petition which does not comply with the provisions of Section 81 (presentation) or Section 82 (parties to the petition) or Section 117 of that Act (deposit of security), it is note-worthy, that in the case of Territorial Councils Act similar provisions are to be found, not in the Territorial Councils Act, but in the Rules framed thereunder (see Rules 69 and 78).

I may point out another important difference. Under Section 90 (1) of the Representation of the People Act, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure, applicable under the C. P. Code to the trial of suits, subject to the provisions of the Act and of the Rules made thereunder. Section 16 of the Territorial Councils Act, on the other hand runs as follows :

'The procedure provided in the Code of Civil Procedure, 1908 (5 of 1908), in regard to suits shall be followed by the court of the District Judge, as far as it can be made applicable, in the trial and disposal of an election petition under this Act.'

(6) It is significant, that this Section makes no mention of the Act, or the Rules made thereunder. The only restriction placed upon the application of the procedure, laid down in the C. P. Code, is 'as far as it can be made applicable.'

(7) It would, therefore, be correct to say, that under the scheme of the Territorial Councils Act, there is greater scope for the application of the procedure laid down in the C. P. Code tothe trial of election petitions.

(8) The next point urged by the learned Counsel for the petitioner was that the learned District Judge has erred in holding, that procedure laid down in C. P. Code, would apply, only, with respect to those matters, which have been specified in the Territorial Councils Act, or in Rules 70, 71, 72, 75 and 79 made thereunder. He pointed out, that Rules 69, 70 and 71 merely provide respectively for the summary dismissal of the petition, issue of notices to the respondents and appearance before the Court. Rule 79 deals with costs, while Rule 72 relates to the following matters :

'(a) discovery and inspection;

(b) enforcing the attendance of witnesses, and requiring the deposit df their expenses',

(c) compelling the production of the documents;

(d) examining witnesses on oath;

(e) granting adjournments:

(f) reception of evidence taken on affidavit, and

(g) issuing commission for the examination of witnesses.''

(9) Mr. Pandit pointed out--and in my opinion, with corsiderable justification,--that the C. P. Code has already made full provision for all the matters referred to in Rules 72 and 79 (See Orders 11, 16, 13, 18, 17, 19, 26 and Section 35 of the C. P. Code) respectively.

(10) The matter does not end here. If, as the learned District Judge seems to think, the procedure laid down, in the C. P. Code, can be followed only, in respect of those matters specified in the Territorial Councils Act, or, in Rules 70, 71, 72, 75 and 79, made thereunder then grave complications would arise, for instance, parties to the election petition cannot be examined under Order 10, nor can issues be framed under Order 14, nor apparently, could a judgment be written under Order 20. This would, obviously, lead to an impossible situation.

Under Section 20 (k) of the Territorial Councils Act, the Central Government has been empowered to frame rules, to regulate matters relating) to elections or election disputes, in respect of which it , deems it necessary, to make rules under the section, or in respect of which the Act made no provision or makes insufficient provision. As shown above, the C. P. Code makes full provision for the matters referred to in Rules 72 and 79. Therefore, these rules appear to be redundant.

(11) Coming to Rule 69, under which the petition was dismissed by the District Judge, it runs as follows :

'If the provisions of Section 13 of the Act or Rule 78 are not complied with, the Court shall dismiss the petition :

Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.'

(12) Rule 78 has no application here, because the District Judge has found, that the deposit was made according to rules. The only question, therefore, that remains to be decided, is, whether the petitioner was debarred from requesting the Court to alter or amend his pleadings, under the provisions of Order 6, Rule 17. The answer to this question would depend upon, whether Rule 69 of the Territorial Councils Rules 1957 is derogatory or supplementary to Section 16 of the Territorial Councils Act. Learned Counsel for the petitioner, vehemently, argued, that a rule could never supersede any provision of the Act, under which it has been framed. He cited the following authorities Radha Krishan v. Compensation Officer, Meja, Allahabad, AIR 1954 All 202 (A). There a Division Bench of that High Court had occasion to indicate that :

'Rules mad(c) under the rule making provision of an Act cannot take away what is given by the Act. Rules are for the purpose of carrying out the provisions of the Act. Hence, the contention that the State Government can make a rule, namely Rule 84, taking away the discretion of the Compensation Officer under Section 69 cannot be accepted.'

Mustarshid Ali v. Commr. of Wakfs, AIR 1954 Cal 436 (B). There a learned Judge of that High Court had occasion to indicate that :

'In some statutes, power is given to frame rules and when so framed they are made part of the statute. In such a case, it might be permissible to supplement the provisions of the statute itself, within limits. But where rules are to be framed for 'carrying out the purpose of the Act,' such rules cannot travel beyond the four corners of the Act itself.'

'In the case of statutory rules, the Court can always go into the question, as to whether they are inconsistent with the statute under which they are made.'

Abdul Gani v. Settlement Officer, Nowgong, AIR 1955 Assam 45 (C). There a Division Bench of that High Court held that;

'It is fundamental that a rule-making body cannot frame rules in conflict with or derogating from the substantive provisions of the law or statute under which the rules are framed.'

(13) On the same analogy, Mr. Pandit submitted that Section 20 of the Territorial Councils Act authorises the Central Government to make rules for the disposal of the election disputes, where the Act makes no provision therefor or makes insufficient provision. He argued, that since, Section 16 of the Territorial Councils Act distinctly prescribes that the procedure laid down in the C. P. Code would be followed in the trial of election petitions, it was not open to the Central Government to make Rule 69, which had the effect of nullifying the provisions of Order 6, Rule 17, C. P. Code. In my opinion, this argument must prevail.

(14) Learned counsel for the respondent, on the other hand, contended that Rule 69 enjoins a special rule of procedure, which would supersede the relevant provisions of the C. P. Code. He invited my attention to Section 90 (3). Representation of the People Act, whereby the Tribunal must dismiss an election petition, which does not comply with the previsions of Sections 81, 82 or 117 of that Act. Section 81, as already stated, relates to the presentation of the petiton and Section 117 to the deposit of security.

Neither of the two questions arises here. Section 82 relates to the parties to the petition. This, again, is not the point at issue here. As regards amendment of pleadings, it must be borne in mind, that under Section 90 (5), R. P. Act the Tribunal has been specifically empowered to permit certain amendments. Further as I have already pointed out, the scheme of the Territorial Councils Act is not identical with that of the Representation of the People Act. The important difference, in my opinion, lies in the scope of the application of the C. P. Cede to the trial of election petitions. Please compare the provision of Section 16 of the Territorial Councils Act, with those of Section 90 (1) of the Representation of the People Act.

(15) At the risk of repetition, I may point out, that the scope is very much wider under the Territorial Councils Act.

(16) Mr. Ramji Dass, for the respondent cited: Mandi Transport Co. Ltd. v. Himachal Pradesh Administration, AIR 1958 Him Pra 1 (D), Harihar Singh v. Singh Ganga Prasad, AIR 1958 Pat 287 (E); S. B. Adityan v. S. Kandaswumi. AIR 1958 Mad 171 (F); M. A. Muttiah Chettiar v. Saw Ganesan, AIM 1958 Mad 187 (G) and Sudhahsu Sekhar v. Natendra Nath Das, AIR 1958 Cal 322 (H).

(17) As regards (A) it arose out of a suit under the Companies Act. The relevant few lays down, that such a suit should be instituted by at least two liquidators. Consequently, I held, that the suit (in that case) was rightly dismissed. This has no application to the facts of the present case.

(18) Turning to AIR 1958 Pat 287 (E), there the petitioner failed to comply with the provisions of Section 117, Representation of the People Act, i.e., the election petition was not accompanied by a challan, showing the deposit of the security. Consequently, it was held that the election petition must be dismissed. No such question is involved here.

(19) Coming to AIR 1958 Mad 171 (F), a Division Bench of Madras High Court, in considering] the effect of non-compliance with the provisions of Section 82, in the light of the amendment Act (Act 27 of 1956) held that :

'As the penal consequence of the rejection of the petition has been statutorily imposed for non-compliance with the provisions of Section 82, it must now be held that the power of the Election Tribunal to invoke the procedure under Order 1, Rule 10, C. P. C. can no longer apply.'

(20) Turning to AIR 1958 Mad 187 (G), a Division Bench of Madras High Court observed that :

'Where by an amendment, a party applying for it, seeks to allege a new fact and not merely to explain or clarify a material fact already stated as a ground for setting aside the election the same cannot be allowed if the application is made after the period prescribed by Section 81 for filing a petition had elapsed.'

(21) Neither of the two Madias Rulings has any application to the facts of the present case.

(22) Lastly, turning to AIR 1958 Cal 322 (H), it also arose out of a case where the provisions of Section 117, Representation of the People Act (deposit of security) had not been complied with. Plainly it has no relevancy here.

(23) In view of all that has been said above. I have come to the conclusion that :

1. The provisions of the C. P. Code would apply to the trial of an election petition, under the Territorial Councils Act, not only in respect of the matters covered by Rules 70, 71, 72, 75 and 79, but all matters raised at the trial.

2. Rule 69 of the Rules must be read along with the relevant provision of the C. P. Code. To the extent, that this rule offends or goes against the relevant provision of the C. P. Code, it must be deemed to be ultra vires of the Act. (Territorial Councils Act 1956).

3. The District Judge was not debarred from permitting alteration or amendment of the petition, under Order 6, Rule 17, C. P. Code, and of the 'verification under Order 6, Rule 15.

(24) Learned counsel for the respondent submitted that no application under Order 6, Rule 17, C. P. Code was made to the Trial Court. Learned counsel for the petitioner, on the other hand, while conceding that no written application was so made submitted that an oral request was made to that Court, at the time of arguments, i.e., to permit such a course and a written application, in this regard, would have been made, if called upon.

(25) Learned counsel for the petitioner submits, that his client is prepared to make a written petition to the trial Court under Order 6, Rule 17, C. P. Code, in case he is given an opportunity to do so. The last point, to be decided, is whether this Court can interfere under Article 227 of the Constitution. In Waryam Singh v. Amarnath, AIR 1954 SC 215 (I), (a case from Himachal Pradesh), their Lordships of the Supreme Court held that :

'The Court of the Judicial Commissioner Himachal Pradesh exercises jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge, exercising the jurisdiction under the East Punjab Urban Rent Restriction Act, 1949, as extended to Himachal Pradesh, are certainly tribunals, if not Courts, and they function within the territories of Himachal Pradesh. Therefore, Article 227 (1) read with Article 241 confers on the Court of the Judicial Commissioner power of superintendence over such Tribunals.

The power of superintendence conferred by Article 227, is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.'

(26) Similarly, in Hari Vishnu Kamath v. Ahmad Ishaq, (S) AIR 1955 SC 233 (J), it was held by the Supreme Court:

'The Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution. That superintendence is both judicial and administrative.'

(27) It is, therefore, obvious that in the exercise of powers conferred by Article 227 of the Constitution, this Court can interfere with the orders and decisions of Election Tribunals, functioning, within the jurisdiction of this Court.


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